OCHS12015 : Occupational Health And Safety Law

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OCHS12015 : Occupational Health And Safety Law

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OCHS12015 : Occupational Health And Safety Law

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Course Code: OCHS12015
University: Central Queensland University

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Country: Australia

Question:

1. Is Vinod entitled to any form of compensation? If so, from whom? Justify your conclusion based on your assessment of the legal position. 
2). Is Penelope entitled to any form of compensation? Is so, from whom? Justify your conclusion based on your assessment of the legal position

Answer:

1. The case of Vinod
Like has been established, the degree of control an employer exacts on either employees or independent contractors is what determines whether the employer is liable or not to liabilities committed by either of them. By and large, an employee is any individual who under the direction of his/her employer performs the work given to him or her under either express, implied or literal means and the employer retains complete control to such effect for a longer period of time. Under this period, the employee has definite job descriptions, working hours and specific work outcomes.   
On the other hand, an independent contractor is an individual who upon being contracted to do a certain task performs such a task under his/her own control. As such the relationship between the employer an independent contractor dies the moment the work under the contract comes to completion and the contractor has been paid off his/her contract price. Employers are entitled to observe all the legal obligations governing an employer-employee relationship (Giliker, 2011, pp.31-56). Independent contractors are only paid for the services under their contract project with little or no labour laws governing their relationship.
Generally, employers are supposed to bear the consequences of the decisions and actions of their employees because employees act on behalf of their employers for purposes of benefiting or profiting from them. Any tortious or criminal activities undertaken by employees are directly attributable to their employers except for very limited instances   (Giliker, 2010). This kind of liability is what is referred to as vicarious liability.  Under vicarious liability, employers are entitled to advance remedy in form of compensation to all the aggrieved parties.
Employers cannot be extended the tortious or criminal liability of independent contractors since the later act on their own capacity. This could be the case when the employers decide to retain a lot of control in the manner in which the activities under the contract are carried out (Pagura, 2011, p.36). Independent contractors are supposed to determine when to carry out the activities under the contract as well as how exactly to do those tasks. To this end, the amount of control on independent contractors by employers is quite minimal. Moreover, Morgan, (2012, pp.615-650.) contend that independent contractors are in most cases contracted to carry out activities that are not of direct principle aspects of the business of the employer.   
With regard to the tools and equipment of service, employees are by and large provided the same by their employers and are given adequate knowhow on how to use them in the course of their duty. They are also provided with identification such as uniform or tags to establish them as employees of a particular organization.  On the other hand, independent contractors provide their own materials of service and receive no training on how to use them (Tan, 2008, pp.36-37)
From the foregoing employer/ employee/ independent contractor legal definitions and relationships, there are three tests that can determine whether Vinod is an employee of Yum Yum Pizzas or just an independent contractor. This will by extension be instrumental in determining whether he is liable for compensation for breaking his leg while in the course of duty. Moreover, the circumstances surrounding the case will also be critical in reaching a fair judgment.
First, the control test establishes whether employers possess complete control over those in they are in a working relationship with. If employers are in a position to entirely control the performance of the job then the servants in question are employees of the employer (Glynn, 2011, p.201). The integration test establishes whether the person and the work the person does constitute an essential part of the organization’s occupation.  If the work is a vital part of the occupation of the firm, then the servant is an employee and if the work is just an accessory to the employer’s business then such an individual is just an independent contractor. Lastly, the multiple tests determine if an individual is an independent contractor or an employee from varied viewpoints. For the sake of this analysis, if an employer provides uniform and other identification facets as well as tools of work to workers, then such workers are employees of the employer and not independent contractors.      
In the case of Vinod vs. Yum Yum Pizzas, Vinod is by and large an employee of Yum Yum Pizzas than it would be easier to conclude that he is an independent contractor. Despite there being a principal/independent contractor sort of association in their relationship with regard to his mode of payment; flat fee per delivery, delivery of pizzas; use his own bicycle, and unspecified finish times, Yum Pizzas still retains a lot of control in the manner in which Vinod performs his pizza delivery work. Vinod has strict commencement times for this job, has been provided with a uniform identifying him to be a possible employee of Yum Yum Pizzas and has also been provided with special heat retaining paniers to allow pizzas to remain hot while on delivery.
Drawing from the foregoing discussion it vividly evident that Vinod is an employee of Yum Pizzas as opposed to being an independent contractor. Yum has endeavoured to retain sufficient control of Vinod’s work by instituting a strict commencement time. From the multiple tests, Vinod has been provided with identification attire and critical equipment in this type of business; heat retaining paniers. With regard to the integration test, Vinod engages in an integral activity (delivery of pizzas) of Yum Yum Pizzas which directly profit the company. Moreover, the delivery mode Vinod uses does not require any specialled form of training or qualifications  
To this end, though Vinod made a detour to a liquorMart that delayed his delivery forcing him to cycle faster to make up lost time, unfortunately, leading to an accident, he is   entitled to compensation from Yum Yum Pizzas since he was still “in the course of his employment”. Indeed, there are even no specified times of finishing the delivery. Yum Yum is vicariously liable to compensate Vinod for injuries sustained since all the facts pertaining to what an employer/ employee relationship is and its legal implications as deduced squarely fit Vinod’s relationship with Yum Yum Pizzas. Like Kolender (2012, pp.81-83) insists Vinod was only acting in good faith “in the course of his employment” for the benefit of his employer but unfortunately caused an accident that is not even of his own making since Penelope and the group decided to play chicken with the traffic that day.
2. The case of Penelope
Bidwell, and Briscoe, (2009, pp.1148-1168) observe that though employers may be vicarious liability to the actions and implications of their employees while in the course of employment, in a situation where the wrongdoings involves a road accident where pedestrians happen to sustain injuries, it is important to determine whether such pedestrians may have contributed to their being involved in the accident leading to their injuries. The facts surrounding the time of causation of the accident are important in determining who is supposed to compensate who and to what extent. Common law contributory negligence concept submits that people have a duty to act in a reasonable manner in the conduct of their affairs so that they avoid unreasonable risks to themselves (Corbett, 2015, p.614).  
If a person fails to abide by this common law standing and acts in an unreasonable way that results to injury to his/her own person, then that person may be held wholly or partly liable for the injuries sustained. In the case where pedestrians are partly to blame for the causation of an accident, then contributory negligence may find them partly liable for their own injuries (De Mot, 2013, pp.54-61). This type of defence by defendants is referred as “volenti non fit injuria”, or voluntary assumption of risk. Intoxication is one basis pedestrians may be held accountable under contributory negligence. When determining damages and the resulting compensation, comparative negligence approach to contributory negligence is very critical at weighing each party’s percentage liability to the accident. Modified comparative negligence advance that plaintiffs must not have contributed more than 50% to the causation of the accident for damages to be recovered (Porat, 2009, pp.1397-1412).
In the case of Penelope vs. Vinod and Yum Yum Pizzas, Penelope and the group while intoxicated decided to play chicken with the traffic which led to her running across Vinod’s path. On his part, Vinod was peddling beyond the speed limit to make up with time and ought to have been careful with pedestrians on a busy street. It can be seen that both of them contributed to the accident. To this end, Penelope is entitled to damages compensation from Yum Yum Pizzas equal to total damages minus her perceived contribution to the accident. Yum Yum Pizzas is liable to compensate since Vinod caused the accident while still in the course of his duty since they are no unspecified finish times of his duty and the accident was marely “incidental”. Employers can only escape from liability if it is demonstrated that the employee acted in ways that are not connected to their employment stipulations (Nuttall, 2011).   
Conclusion
The difference between an independent contractor and an employee is very critical when it comes to pressing vicarious liability against employers (Bell, 2013, pp.17-20). While employees are under the direct strict control of their employers, independent contractors act on their own capacity on the works under their contract. Employers are only entitled to bear the liability of their employees while they are in their course of employment. The tests of deciding whether someone is an employee or independent contractor are critical at deciding confusing. In case a wrongdoing by an employee involves an accident, contributory and comparative negligence are critical at determining who is to blame and who is to pay or receive what compensation (Parisi, & Singh, 2010, pp.219-245. In this case study, Vinod is entitled to compensation since he was in the course of employment when the accident occurred. Penelope is only entitled to compensation equivalent to total damages minus the perceived contribution to the accident from Yum Yum Pizzas.
Introduction:
Organisations’ are often faced with the dilemma of either employing workers to carry out the organizations’ activities or engaging independent contractors to do the same job (Moran, 2009, 105) p. Both strategies present benefits and disadvantages to organizational owners and whichever is chosen it presents broad and far-reaching legal implications especially in the event of a tortious liability. To find out if an individual is an employee or an independent contractor to an organization, an organization is obligated to weigh its degree of control with that person (Franklin, 2008, p.435).    
This establishment is critical in determining who is liable in the event of a tortious liability or even in a criminal proceeding when either of these parties is involved in any of these wrongdoings in the course of duty.  This paper is concerned with extrapolating whether a vicarious liability exists in the case of Yum Yum Pizzas and Vinod when Vinod causes an accident that leads to the breaking of his leg while in the course of his duty and by extension injuring Penelope a socialite. Moreover, the paper will also deduce whether both or either Vinod or Penelope deserves compensation and if so from whom. In doing so, the relevant legal assessment will be conducted to justify the judgment.
References:
Bell, J., 2013. The basis of vicarious liability. The Cambridge Law Journal, 72(1), pp.17-20.
Bidwell, M.J. and Briscoe, F., 2009. Who contracts? Determinants of the decision to work as
an independent contractor among information technology workers. Academy of Management Journal, 52(6), pp.1148-1168.
Corbett, J., 2015. Torts-Doctrine of Strict Liability Meets a Comparative Negligence Statute.
DePaul Law Review, 17(3), p.614.
De Mot, J., 2013. Comparative versus contributory negligence: A comparison of the litigation
expenditures. International Review of Law and Economics, 33, pp.54-61.
Franklin, R.T., 2008. ” But I didn’t do it!”: Expanding Theories of Vicarious Liability. FDCC
Quarterly, 58(4), p.435.
Glynn, T.P., 2011. Taking the Employer out of Employment Law-Accountability for Wage
and Hour Violations in an Age of Enterprise Disaggregation. Journal of registry management, p.201.
Giliker, P., 2011. Vicarious Liability or Liability for the Acts of Others in Tort: A
Comparative Perspective. Journal of European Tort Law, 2(1), pp.31-56.
Giliker, P., 2010. Vicarious liability in tort: a comparative perspective (Vol. 69). Cambridge
University Press.
Kolender, E., 2012. Employee vs. independent contractor. Journal of registry management,
39(2), pp.81-83.
Morgan, P., 2012. Recasting vicarious liability. The Cambridge Law Journal, 71(3), pp.615-
650.
Moran, J.A., 2009. Independent contractor or employee-misclassification of workers and its
effect on the state. Journal of registry management, p.105.
Nuttall, P., 2011. “… Where the Shadows lie”: Confusions, misunderstanding, and
misinformation about workplace status. New Zealand Journal of Employment Relations, 36(3).
Pagura, I., 2011. Employment law: employee v independent contractor. Journal of the
Australian Traditional-Medicine Society, 17(2), p.36.
Porat, A., 2009. A Comparative Fault Defense in Contract Law. Michigan Law Review,
pp.1397-1412.
Parisi, F. and Singh, R., 2010. The efficiency of comparative causation. Review of Law &
Economics, 6(2), pp.219-245.
Tan, S., 2008. Vicarious Liability. Internal Medicine News, 41(24), pp.36-37.
 

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